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Gordon S. Howell, Sr v. Calaveras County District Attorney; et al

August 23, 2011

GORDON S. HOWELL, SR.,
PLAINTIFF,
v.
CALAVERAS COUNTY DISTRICT ATTORNEY; ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER: GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; [Doc. No. 2] DENYING MOTION FOR APPOINTMENT OF COUNSEL; [Doc. No. 3] SUA SPONTE DISMISSING 1915(e)(2)(B) FOR FAILURE TO STATE A CLAIM COMPLAINT UNDER 28 U.S.C.

Plaintiff Gordon S. Howell, Sr., proceeding pro se, initiated this civil action against Defendants "Calaveras County District Attorney and all Representatives" for alleged constitutional violations regarding Defendants' efforts to "force" Plaintiff to register as a sex offender in California. [Doc. No. 1.] Plaintiff contemporaneously filed a motion for leave to proceed in forma pauperis ("IFP"), and a motion for appointment of counsel. [Doc. Nos. 2, 3.]

I. MOTION TO PROCEED IFP

A party instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). "To proceed in forma pauperis is a privilege not a right." Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).

A party need not be completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). But "the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). Based on the information provided by Plaintiff in support of his IFP motion, the Court GRANTS Plaintiff's motion to proceed in forma pauperis, but solely for the purpose of resolving the pending motions.

II. SCREENING PURSUANT TO 28U.S.C.§1915(E)(2)(B)

When a plaintiff proceeds IFP, the complaint is subject to mandatory screening and the Court must order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.").

"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In addition, the Court has a duty to liberally construe a pro se's pleadings. Id. In giving liberal interpretation to a pro se complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). For the reasons set forth below, the Court concludes Plaintiff's complaint does not meet the federal pleading rules and fails to state a claim upon which relief may be granted.

Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "enough facts to state a claim to relief that is plausible on its face." See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (citation omitted).

Additionally, under Federal Rule of Civil Procedure 10(b), a plaintiff should state "each claim founded on a separate transaction or occurrence" as a "separate count." Fed. R. Civ. P. 10(b). Rule 10 provides that a "party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Id. Upon due consideration, Plaintiff's complaint fails to satisfy the pleading standards of Rule 8(a)(2) and Rule 10(b), and is therefore subject to dismissal. Plaintiff's complaint consists of a single lengthy paragraph, indicating that he desires a hearing regarding whether he must register as a sex offender for a conviction that occurred over thirty years ago. [Doc. No. 1.] The document does not list the parties, nor identify any purported causes of action or specific identifiable conduct by the defendants. Plaintiff's limited allegations do not satisfy Rules 8(a)(2) and 10(b).

In addition, Plaintiff's complaint is subject to dismissal under Rule 12(b)(6) because it fails to state a claim upon which relief can be granted. Plaintiff alleges only that his constitutional rights have been violated because he was forced to register as a sex offender after he moved to California, even though he was "discharged" in 1981 after completing his sentence.

Plaintiff attaches a letter dated January 11, 2011, from the Texas Department of Criminal Justice which indicates Plaintiff served over two and one half years of a five-year sentence in Harris County, Texas, for aggravated rape. [Doc. No. 1, Exh. 1.] The letter further states "[t]he maximum expiration date for this offense was April 29, 1984. [Id.] However, even if the Court considers this letter in reviewing the sufficiency of Plaintiff's complaint, Plaintiff still fails to state a claim upon which relief can be granted.

Under California Penal Code sections 290 and 290.005 ("Sex Offender Registration Act"), certain persons must register as sex offenders if they travel to or reside in California. "The requirement applies to any person 'convicted' of one of the enumerated sex crimes in this state or an equivalent crime in another state." In re Watford, 186 Cal. App. 4th 684, 690 (2010). The Sex Offender Registration Act "imposes on each person convicted a lifelong obligation to register. Registration is mandatory." Id. Accordingly, a sex offender must "register based upon the fact of conviction until such time as the predicate conviction may be invalidated." Id. at 691.

Here, Plaintiff provides no detail regarding his underlying conviction, nor allegations that indicate his predicate conviction has been invalidated. First, it is not entirely clear whether Plaintiff's "aggravated rape" charge in Texas qualifies him as a sex offender who must register in California. However, Plaintiff does not allege the conviction does not fall within the Sex Offender Registration Act's purview, and therefore he is exempt from the registration requirement. Instead, Plaintiff argues he completed his sentence in 1981. Second, it is likely Plaintiff's aggravated rape conviction qualifies as an offense that requires him to register in California, thus, his assertion that he served his sentence and was "discharged" is not sufficient to establish that the lifelong registration obligation imposed by the Sex Offender Registration Act has been lifted. See In re Parks, 184 Cal. App. 3d 476, 480-81 (1986) (conviction for forcible rape triggered registration requirement under the Sex ...


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